Clifford et al v. Placer County et al

Filing 55

ORDER signed by Judge Lawrence K. Karlton on 8/27/14 GRANTING in part and DENYING in part 21 Motion for Summary Judgment. Summary judgment is granted for defendants on plaintiff's first, third, fourth, fifth, sixth, seventh, and tenth cause s of action. Summary judgment is granted in favor of defendants Placer County and Placer County Sheriff's Office. Summary judgment is denied for defendant Clark on plaintiff's second, eighth, ninth, eleventh and twelfth causes of action. The Estate of Robert S. Clifford is dismissed as a plaintiff. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ESTATE OF ROBERT CLIFFORD, et
al.,

No. CIV. S-11-2591 LKK/CKD

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Plaintiffs,
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ORDER
v.

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PLACER COUNTY, et al.,
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Defendants.
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Plaintiffs Estate of Bobby S. Clifford (Estate) and Linda K.

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Clifford bring this § 1983 action for damages against defendants

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Placer County, the Placer County Sheriff’s Department, and Placer

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County Sheriff’s Deputy David Clark (Clark).

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from the shooting death of Bobby S. Clifford (Clifford) by

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defendant Clark.

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1983 based on alleged violations of federal constitutional rights

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(First, Second, Third, Fifth, Sixth, Seventh and Eighth Causes of

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Action), one claim under 42 U.S.C. § 1985 for conspiracy to

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violate Clifford’s constitutional rights (Fourth Cause of

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Action), and four pendent state law claims (Ninth through Twelfth

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Causes of Action).

The action arises

Plaintiffs raise seven claims under 42 U.S.C. §

The action is proceeding on plaintiffs’
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second amended complaint, filed February 7, 2012 (ECF No. 15),

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and is before the court on defendants’ motion for summary

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judgment and, in the alternative, for summary adjudication.1

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Defendants contend that the Estate lacks capacity to sue and

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should be dismissed.

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argument.

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of capacity to sue and be sued in this § 1983 action, see Fed. R.

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Civ. P. 17(b)(3), defendants are correct.

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199 Cal.App.4th 1381, 1390-91 (Cal.App. 1 Dist. 2011).

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Plaintiffs have not responded to this

Under California law, which controls the determination

See Smith v. Cimmet,
The Estate

will be dismissed.2

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In opposition to the motion, plaintiff concedes that

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defendants are entitled to summary judgment on the Monell claims,

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medical claims, conspiracy claims, and claims against Placer

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County.

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defendants’ motion for summary judgment will be granted as to

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plaintiff’s third, fourth and seventh claims for relief.

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claims remaining for resolution are those raised against

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defendant Clark.

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I.

See Pl.’s Opp. (ECF No. 38) at 18 n.3.

Accordingly,

The

FACTS
Undisputed Facts3

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A.

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On August 1, 2011, at approximately 10:30 p.m. Clark was on

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duty and in a parking lot at Sierra College and Douglas Boulevard
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The motion came on for hearing before the undersigned on May 5, 2014.
Orestes A. Cross, Esq., appeared as counsel for plaintiffs. Deputy County
Counsel Valerie Floss appeared as counsel for defendants.
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For the remainder of this order plaintiff will be used in the singular to
refer to the remaining plaintiff, Linda Clifford, who sues here both in her
individual capacity with right of survivorship and as personal representative
of the Estate.
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The undisputed facts are facts admitted by plaintiff in response to
defendants’ statement of undisputed facts and some contained in dispatch
records.

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in Granite Bay, California.

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of Undisputed Material Facts (ECF No. 39) at 1.

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of prior reports of a burglary and drug deals in this parking

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lot.

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Resp. to Defs.’ Proposed Statement
Clark was aware

Id. at 2.
“Clark observed a vehicle in the middle of the parking lot,

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not next to any particular business.”

Id.

Clark went into a

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convenience store in the parking lot.

Id.

After he exited the

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store, he “parked his patrol car behind the parked vehicle,

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reported to dispatch that he was conducting a vehicle check, and

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activated his spotlight on the car.”

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the parked vehicle.

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car, there was nothing in front of the car blocking its path.

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Id.

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Id.

Id. at 3.

Clifford was in

When Clark parked behind Clifford’s

There was a gun on the passenger seat of the vehicle an

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arm’s length away from Clifford.

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observed the gun, he requested back up and informed dispatch that

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he had a person at gunpoint.

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fired one series of four shots in rapid succession.

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Clark estimates that not later than one minute after shooting

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Clifford he radioed that shots had been fired and a code 3 for an

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ambulance.

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encounter with Clifford lasted less than five minutes.

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Id. at 9.

Id.

at 6.

Id. at 7.

After Clark

Subsequently, Clark
Id. at 8.

Clark also estimates that his entire
Id.

Dispatch records show an initial report of a vehicle check

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by Clark at approximately 10:32 p.m. on August 1, 2011.

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Ex. C (ECF No. 21-6) at 39. About a minute later, at

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approximately 10:33 p.m. a 10-35 radio transmission is recorded.

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Id.

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gunpoint.” Id.

Defs.

Seventeen seconds later there is a transmission of “one at
At approximately 10:34 p.m. the dispatch record
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shows “Comment:

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10:35 p.m., a transmission of “gun on the front seat and

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uncompliant person”

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at approximately 10:36 p.m. the comment “Units are Code 3.”

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Approximately thirty seconds later a transmission of “shots fired

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– start and ambulance code 3” is recorded.

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Roseville PD enrt C/3.”

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is recorded.

Id.

Id.

At approximately

Dispatch records include,
Id.

Id.

By 10:40 p.m., Roseville Police Department officers had

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started first aid on Clifford. Id. at 10.

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pronounced dead at 10:59 p.m. at Sutter Roseville Medical Center.

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Clifford was

Id. at 11.

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A toxicology report included with the Coroner’s Report

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showed Clifford had a blood alcohol level of 0.223 and 8.0 ng/mL

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of methamphetamine.

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The report indicates that the specimens were collect at 9:15 a.m.

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on August 3, 2011, approximately 33 hours and 45 minutes after

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Clifford died.

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Defs. Ex. F (ECF No. 21-6) at 64, 70, 77.

Id. at 56, 64.

Prior to approaching Clifford’s vehicle on August 1, 2011,

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Clark did not know Clifford or his mother, plaintiff Linda

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Clifford.

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B.

Id.
Clark’s Assertions Concerning the Shooting5

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Clark also avers in his declaration that he radioed to dispatch that “he had
an uncompliant person.” Clark Decl. at ¶ 11. Plaintiff objects to the
statement that Clark used his radio as irrelevant, and that Clifford was
uncompliant as hearsay. Those objections are not properly before the court on
this motion for summary judgment. See Fed. R. Civ. P. 56(c)(2).

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Plaintiff contests Clark’s description of events on the ground that it is
uncorroborated. Plaintiff argues that because Clark is the sole surviving
witness to the deadly force incident at issue pursuant to Scott v. Henrich, 39
F.3d 912, 915 (9th Cir. 1994), his statements must be corroborated by other
evidence in order to support summary judgment. Plaintiff reads Scott too
broadly. Scott teaches that where the defendant officer is the only surviving
witness of a deadly force incident, the court “must carefully examine all the
evidence in the record, such as medical reports, contemporaneous statements by
the officer and the available physical evidence, as well as any expert

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The court has reviewed Clark’s August 2, 2011 interview with

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investigators after the shooting (ECF No. 21-6) and his February

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10, 2014 declaration filed in support of defendants’ motion for

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summary judgment (ECF No. 21-4), both of which have been tendered

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by defendants.

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Clark’s March 17, 2014 videotaped deposition, tendered by

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plaintiff.

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following:

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The court has also reviewed the

transcript of

In one or more of these documents, Clark reports the

At his deposition, Clark testified that he went to the

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parking lot to refill his water at the convenience store.

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Dep. at 38:11-16; Clark Decl. at ¶ 4.

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and there had been no call to the parking lot.

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38:10-16.

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very loud music.”

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parked in the parking lot and could not tell which one the music

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was coming from.

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water and exiting the store, he again heard the music.

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Decl. at ¶ 4.

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where this loud music was coming from.”

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He got in his patrol car and drove toward a car in the middle of

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the parking lot.

Clark

He was on “routine patrol”
Clark Dep. at

Before entering the convenience store he “heard some
Clark Decl. at ¶ 4.

He saw a couple of cars

Clark Dep. at 43:11-15. After refilling his
Clark

He scanned the parking lot “to try and figure out

Id. at 46:3.

Clark Dep. at 41:21-22.

He determined that the first car

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testimony proffered by the plaintiff, to determine whether the officer's story
is internally consistent and consistent with other known facts. . . . In
other words, the court may not simply accept what may be a self-serving
account by the police officer. It must also look at the circumstantial
evidence that, if believed, would tend to discredit the police officer's
story, and consider whether this evidence could convince a rational factfinder
that the officer acted unreasonably.” Id. (internal citations omitted). The
court treats the following facts as subject to the heightened scrutiny
required by Scott.

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was empty and as he got closer to the second car he could tell it

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was coming from that car.

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Defs. Ex. A (ECF No. 21-4) at 12.6

Clark was aware of reports of an auto burglary in this

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parking lot and a report from the manager of the adjacent

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Walgreens who “suspected that cars were pulling up to each other

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in the parking lot and made [sic] hand to hand drug

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transactions.”

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testified that he approached Clifford’s car because the music was

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“very, very loud” and “it was not normal for cars to be blasting

Clark Decl. at ¶ 3.

At his deposition, he

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their music and drawing attention to themselves like that.”

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Clark Dep. at 48:2-9.

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reports, he believed he had to determine what was going on with

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Clifford’s car.

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In view of the loud music and the prior

Clark Dep. at 46:22-48:9.7

After Clark shined his spotlight on Clifford’s vehicle,

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Clifford turned down the music volume, “opened his driver’s side

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door and stepped out with his left foot.”

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Clark approached the car and ordered Clifford to stay in his car

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or to get back in the vehicle.

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not, at that point, verbally identify himself as a deputy

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sheriff.

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gun, Clark had pepper spray and a taser on his belt.

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at 54:14-55:1.

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his movements and was not alert, and . . . Clifford’s eyes were

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bloodshot and glossy.”

Clark Decl. at ¶ 7.

Clark Dep. at 68:2-9.

Defs. Ex. A (ECF No. 21-6) at 9.

He did

In addition to his
Clark Dep.

Clark observed that Clifford “was real slow with

Clark Decl. at ¶ 8.

Clifford had no

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At his deposition, Clark testified that before he got in his car he “could
tell basically where the music was coming from.” Clark Dep. at 46:4-6.
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At his initial interview, Clark told investigators that after learning of
the other crimes he thought he needed “to kind of make an extra patrol into
that parking lot and look for cars that might be fitting the description of,
you know, doing the drug deals.” Defs. Ex. A (ECF No. 21-6) at 10.

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shirt on and “looked very disheveled.”

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comply with the command right away.

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testified at his deposition that Clifford

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Clifford did not

Clark Dep. at 68:21.

Clark

just was swaying a little bit.
Looked a
little disheveled as I got closer to him. He
seemed really slow with his movements and his
responses as far as trying to position
himself back into the car, almost like he
wasn’t able to do it without help, or he
didn’t have the weight or the momentum to get
himself out of the car.

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Id.

Id. at 68:25-69:6.

Clark thought Clifford “seemed impaired.”

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Id. at 69:8; Clark Decl. at ¶ 8.

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Clark’s verbal commands, and Clark estimates it took him 30

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seconds or more to get back in the car.

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Later in the deposition, Clark testified that Clifford was “very

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slow to comply” with the initial command, he “appeared very

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disheveled and, you know, his eyes were blood shot” and “his

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movement was real slow.”

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his movements and he was swaying within the seat.”

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Clifford did not respond to

Clark Dep. at 71:5-17.

Id. at 74:13-15.

He “wasn’t quick with
Id. at 74:23-

Clifford did not respond to Clark’s initial question about

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why he was playing the music so loud.

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repeated the question and got “some type of unintelligible

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response.”

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identification and Clifford “said yeah.”

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Clifford reached toward the glove compartment of the vehicle and

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opened the glove compartment.

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(ECF No. 21-6) at 14. As he did, Clark observed a gun on the

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front passenger seat.

Id. at 76:3-10.

Id. at 75:8-11.

Clark

Clark then asked Clifford if he had
Id. at 76:12-13.

Clark Decl. at ¶9; Defs. Ex. A

Resp. to Defs.’ Proposed Statement of

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Undisputed Material Facts (ECF No. 39) at 6. Clark drew his gun

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and ordered Clifford to keep his hands on the steering wheel.

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Id. at 7.

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According to Clark, Clifford slowly brought his hands back

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in the “general direction of the steering wheel” and “briefly”

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placed his hands on the wheel.

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Clifford then kept taking his hands on and off the steering

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wheel, looking toward the gun, and “moving, swaying in the seat.”

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Id. at 86:22-24. Clark continued to tell Clifford not to reach

Clark Dep. at 84:1-4, 85:24-86:1.

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for the gun and that he would be shot if he did so.

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3.

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to ask Clark who he was.

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verbally identified himself as a Placer County Sheriff’s Deputy.

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Id. at 87:8-9; Defs. Ex. A (ECF No. 21-6) at 9.

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believed Clifford knew he was a sheriff’s deputy, he gave him the

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“benefit of the doubt” and shined his flashlight on his badge.

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Clark Dep. at 94:6; Defs. Ex. A (ECF No. 21-6) at 15.

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Clifford kept taking his hands on and off the wheel and began
Id. at 87:5-6.

At that point, Clark

Although he

Clark states that he radioed one, two, or three times for

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immediate back up.

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(ECF No. 21-6) at 15.

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were received.

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Id. at 87:1-

Clark Dep. at 89:6-15, 92:7-8; Defs. Ex. A
He was not sure whether his transmissions

Id.

At his deposition, Clark testified that the “majority of the

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time” Clifford’s hands were hovering in front of the steering

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wheel, but he was “clearly not following the simple directions of

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keep the hands on the steering wheel.”

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Clark felt Clifford “was testing to see how far he could get and

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what kind of reaction [Clark] was going to have based on him

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taking his hands off and on the steering wheel.”
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Clark Dep. at 92:10-93:1.

Id. at 92:12-

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15.

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Clifford’s “demeanor changed” and he started to yell, become

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hostile, and “more aggressive in his movements.”

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18.

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Clark reported that at some point during the exchange,

Id. at 96:14-

Clifford continued to question Clark and twice demanded to

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see his badge.

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between these inquiries, Clark radioed that had “one in gunpoint,

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gun in the car, and that he was not compliant.”

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100:2.

Clark Dep. at 95:23-96:6.

At some point, perhaps

Id. at 99:23-

Clark testified that he was shining his flashlight in

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Clifford’s eyes so that Clifford couldn’t have good vision.

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at 100:7-9.

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to get the flashlight out of his eyes.

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Clifford was “looking and . . . moving forward and he makes a

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reach towards the gun.”

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declaration that this was a “controlled – full arm’s reach for

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the gun” whereupon Clark fired his gun, shooting Clifford.

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Decl. at ¶ 13.8

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C.

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Id.

Clifford tried to lift himself above the door frame
Id. at 100:9-10.

Id. at 100:11-12.

Clark avers in his

Clark

Plaintiff’s Expert Declarations

Defendants filed their motion for summary judgment on

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February 14, 2014.

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On the same day, the United States Supreme Court issued

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Cotton, 572 U.S. ___, 134 S.Ct. 1861 (2014) (per curiam).

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order filed May 7, 2014, the parties were granted an additional

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period of fifteen days in which to file supplemental briefs

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addressing the application, if any, of Tolan to the motion at

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bar.

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The court heard oral argument on May 5, 2014.
Tolan v.
By

In his deposition, Clifford described the movement as toward the gun as
different from Clifford’s earlier movements, “a little bit quicker, and it was
deliberate.” Clark Dep. at 101:15-102:2.

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On May 13, 2014, defendants filed a supplemental brief.

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On May 22, 2014, plaintiff filed a supplemental brief accompanied

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by two expert declarations.

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response to plaintiff’s supplemental brief, requesting that the

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two expert declarations be stricken or, in the alternative, that

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defendants be granted an opportunity to respond to the evidence

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and argument thereon.

Plaintiff responded to defendants’ request

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the day it was filed.

By order filed May 23, 2014, the court

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denied defendants’ request to strike the expert declarations and

On the same day, defendants filed a

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granted defendants fifteen days to respond thereto.

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filed their response on June 6, 2014.

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expert evidence does not create a triable issue of material fact

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and that the conclusions of one of the experts are inadmissible.

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Defendants

Defendants argue that the

The court has reviewed the two expert declarations.

For the

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reasons discussed below, the court finds that inconsistencies in

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Clark’s description of Clifford’s appearance and behavior create

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a credibility question that must be resolved by a jury.

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one of plaintiff’s experts also recognizes and relies on those

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inconsistencies in his report, see Ex. A to Streed Decl. at 18,

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expert testimony is not necessary on that precise question.

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if the court were to consider the expert opinions at this stage

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of these proceedings, they do not materially affect the

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disposition of this motion.

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time on their admissibility at a subsequent stage of these

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proceedings.

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III.

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While

Even

The court makes no findings at this

STANDARDS FOR A MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the
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1

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

2

P. 56(a); Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (it is the

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movant’s burden “to demonstrate that there is ‘no genuine issue

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as to any material fact’ and that the movant is ‘entitled to

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judgment as a matter of law’”); Walls v. Cent. Contra Costa

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Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (per curiam)

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(same).

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Consequently, “[s]ummary judgment must be denied” if the
court “determines that a ‘genuine dispute as to [a] material

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fact’ precludes immediate entry of judgment as a matter of law.”

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Ortiz v. Jordan, 562 U.S. ___, 131 S. Ct. 884, 891 (2011)

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(quoting Fed. R. Civ. P. 56(a)); Comite de Jornaleros de Redondo

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Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011)

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(en banc) (same), cert. denied, 132 S. Ct. 1566 (2012).

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Under summary judgment practice, the moving party bears the

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initial responsibility of informing the district court of the

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basis for its motion, and “citing to particular parts of the

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materials in the record,” Fed. R. Civ. P. 56(c)(1)(A), that show

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“that a fact cannot be . . . disputed.”

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56(c)(1); Nursing Home Pension Fund, Local 144 v. Oracle Corp.

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(In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387

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(9th Cir. 2010) (“The moving party initially bears the burden of

23

proving the absence of a genuine issue of material fact”) (citing

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Celotex v. Catrett, 477 U.S. 317, 323 (1986)).

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Fed. R. Civ. P.

A wrinkle arises when the non-moving party will bear the

26

burden of proof at trial. In that case, “the moving party need

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only prove that there is an absence of evidence to support the

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non-moving party’s case.” Oracle Corp., 627 F.3d at 387.
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1

If the moving party meets its initial responsibility, the

2

burden then shifts to the non-moving party to establish the

3

existence of a genuine issue of material fact. Matsushita Elec.

4

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986);

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Oracle Corp., 627 F.3d at 387 (where the moving party meets its

6

burden, “the burden then shifts to the non-moving party to

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designate specific facts demonstrating the existence of genuine

8

issues for trial”). In doing so, the non-moving party may not

9

rely upon the denials of its pleadings, but must tender evidence

10

of specific facts in the form of affidavits and/or other

11

admissible materials in support of its contention that the

12

dispute exists. Fed. R. Civ. P. 56(c)(1)(A).

13

The court’s function on a summary judgment motion is not to

14

make credibility determinations or weigh conflicting evidence

15

with respect to a disputed material fact. See T.W. Elec. Serv. v.

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Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

17

“In evaluating the evidence to determine whether there is a

18

genuine issue of fact,” the court draws “all reasonable

19

inferences supported by the evidence in favor of the non-moving

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party.” Walls, 653 F.3d at 966. Because the court only considers

21

inferences “supported by the evidence,” it is the non-moving

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party’s obligation to produce a factual predicate as a basis for

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such inferences. See Richards v. Nielsen Freight Lines, 810 F.2d

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898, 902 (9th Cir. 1987). The opposing party “must do more than

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simply show that there is some metaphysical doubt as to the

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material facts . . . .

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not lead a rational trier of fact to find for the nonmoving

Where the record taken as a whole could

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12

1

party, there is no ‘genuine issue for trial.’” Matsushita, 475

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U.S. at 586-87 (citations omitted).

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IV.

ANALYSIS

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A.

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Defendants seek summary judgment on plaintiff’s first,

Qualified Immunity

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second, and eighth causes of action on the grounds of qualified

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immunity.

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violations of Clifford’s Fourth Amendment rights.

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cause of action claims unlawful seizure/detention of Clifford;

The first and second causes of action allege
The first

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the second cause of action claims unlawful use of excessive and

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deadly force.

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for pain and suffering incurred by Clifford before he died.

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The eighth cause of action is a survival action

The doctrine of qualified immunity protects a government

14

official from liability for civil damages except where the

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official violates a constitutional right that “‘was “clearly

16

established” at the time of the challenged conduct.’”

17

Moss, 134 S.Ct. 2056 (2014) (quoting Ashcroft v. al-Kidd, 563

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U.S. ___, 131 S.Ct. 2074, 2080 (2011)).

19

inquiry has two prongs: (1) whether the officer’s conduct

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violated a constitutional right and (2) whether “the right at

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issue was clearly established at the time of the incident such

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that a reasonable officer would have understood her conduct to be

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unlawful in the situation.”

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1119, 1123 (9th Cir. 2011) (quoting Saucier v. Katz, 533 U.S. 194,

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201-02 (2001)).

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factors in either order.

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236 (2009).

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immunity defense turns whether the undisputed facts and the

Wood v.

The qualified immunity

Torres v. City of Madera, 648 F.3d

The court has discretion to consider the two
See Pearson v. Callahan, 555 U.S. 223,

At summary judgment, resolution of the qualified

13

1

inferences to be drawn therefrom, viewed in the light most

2

favorable to the non-moving party, show a violation of clearly

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established federal constitutional rights.

4

134 S.Ct. 1861, 1866 (2014).

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Court reminded us that their

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See Tolan v. Cotton,

In Tolan, the United States Supreme

qualified-immunity
cases
illustrate
the
importance of drawing inferences in favor of
the nonmovant, even when, as here, a court
decides only the clearly-established prong of
the standard. In cases alleging unreasonable
searches or seizures, we have instructed that
courts
should
define
the
“clearly
established” right at issue on the basis of
the “specific context of the case.” Saucier,
supra, at 201, 121 S.Ct. 2151; see also
Anderson v. Creighton, 483 U.S. 635, 640–641,
107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
Accordingly, courts must take care not to
define a case's “context” in a manner that
imports
genuinely
disputed
factual
propositions. See Brosseau, supra, at 195,
198, 125 S.Ct. 596 (inquiring as to whether
conduct violated clearly established law “
‘in light of the specific context of the
case’ ” and construing “facts ... in a light
most favorable to” the nonmovant).

18
Tolan v. Cotton, id.
19
1.

First Cause of Action

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Clark contends that neither his initial approach to Clifford
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nor his subsequent detention of Clifford violated the Fourth
22
Amendment’s limits on detention.

He also contends that at the

23
time of the events at bar it was not clearly established that a
24
peace officer would violate the Fourth Amendment by questioning
25
an occupant of a parked vehicle and detaining a person
26
“reasonably suspected of playing loud music and subsequently
27
28
14

1

suspected of driving under the influence.”

2

and Authorities (ECF No. 21-1) at 27.

3

Defs.’ Mem. of Points

Plaintiff contends Clark’s testimony that there was loud

4

music coming from the car and that he suspected Clifford was

5

under the influence of drugs or alcohol because of Clifford’s

6

behavior is uncorroborated and therefore, pursuant to Scott v.

7

Henrich, insufficient to establish either fact.

8

without merit.

9

required to “carefully examine all the evidence in the record,

This contention

As discussed above, under Scott the court is

10

such as medical reports, contemporaneous statements by the

11

officer and the available physical evidence, as well as any

12

expert testimony proferred by the plaintiff, to determine whether

13

the officer’s story is internally consistent and consistent with

14

other known facts.”

15
16
17
18
19
20
21
22
23
24

Scott, 39 F.3d at 915.

Here, Clark was interviewed the day after the shooting and
told the interviewer that Clifford’s car
stereo was blasting loud enough to where, uh,
it was a nuisance in my opinion and it was –
if the car was driving and I would have
noticed the same volume on the stereo, I
would have pulled the car over.
Um, it
caught my attention as I went into the store
to get my water, and I was like okay, I need
to find out where that stereo noise is coming
from. Coming back out from getting my water,
go get in the car and scan the parking lot,
see okay, there’s two cars.
The first car
was empty and the second car, as I’m getting
closer I can tell that it was coming from
that car.

25
26

Defs.’ Ex. A (ECF No. 21-6) at 12.

27

report on Clifford included findings of a blood alcohol level of

28

0.223 and 8.0 ng/ml of methamphetamine.
15

In addition, the toxicology

Defs.’ Ex. F (ECF No.

1

21-6) at 65; Streed Exp. Rep. (ECF No. 48-1) at 15.

2

stated reasons for approaching the car and detaining Clifford are

3

“internally consistent and consistent with other known facts.”

4

Scott, 39 F.3d at 915.

Clark’s

5

Clark is entitled to qualified immunity on this claim.

6

he approached the car, Clark had a reasonable suspicion that loud

7

music was coming from the car, and once he observed Clifford, he

8

had a reasonable suspicion that Clifford was under the influence

9

of drugs or alcohol.

When

Even though “it is difficult to imagine a

10

less threatening offense than playing one's car stereo at an

11

excessive volume”, U.S. v. Grigg, 498 F.3d 1070, 1077 (9th Cir.

12

2007), it is nonetheless an infraction under the Placer County

13

noise ordinance.

14

reasonable suspicion that plaintiff was under the influence of

15

drugs or alcohol.

16

on this claim.

17

1020-21 (9th Cir. 2009) (officer entitled to qualified immunity

18

for detaining individual suspected of being under influence of

19

controlled substance).

20

2.

21

Once Clark observed Clifford, he had a

He is therefore entitled to qualified immunity

See Ramirez v. City of Buena Park, 560 F.3d 1012,

Second and Eighth Causes of Action

Plaintiff’s second claim is that his rights under the Fourth

22

Amendment were violated by use of excessive and deadly force.

23

Clark seeks summary judgment on this claim on the ground of

24

qualified immunity, and contends the same analysis applies to

25

plaintiff’s eighth cause of action.

26

whether the evidence, viewed in the light most favorable to

27

plaintiff, could, if proved, establish a violation of the Fourth

28

Amendment by use of excessive and unnecessary deadly force.
16

The court turns first to

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

An objectively unreasonable use of force is
constitutionally excessive and violates the
Fourth
Amendment's
prohibition
against
unreasonable seizures. Graham v. Connor, 490
U.S. 386, 394–96, 109 S.Ct. 1865, 104 L.Ed.2d
443 (1989); Tekle v. United States, 511 F.3d
839, 844 (9th Cir.2007). Determining the
reasonableness of an officer's actions is a
highly fact-intensive task for which there
are no per se rules. Scott, 550 U.S. at 383,
127 S.Ct. 1769. We recognize that “police
officers are often forced to make splitsecond judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about
the amount of force that is necessary in a
particular situation,” Graham, 490 U.S. at
397, 109 S.Ct. 1865, and that these judgments
are
sometimes
informed
by
errors
in
perception of the actual surrounding facts.
Not all errors in perception or judgment,
however, are reasonable. While we do not
judge the reasonableness of an officer's
actions “with the 20/20 vision of hindsight,”
id. at 396, 109 S.Ct. 1865, nor does the
Constitution
forgive
an
officer's
every
mistake. See Maryland v. Garrison, 480 U.S.
79, 87 n. 11, 107 S.Ct. 1013, 94 L.Ed.2d 72
(1987). Rather, we adopt “the perspective of
a reasonable officer on the scene ... in
light
of
the
facts
and
circumstances
confronting [her].” Graham, 490 U.S. at 396,
109 S.Ct. 1865.. . . .
Standing in the shoes of the “reasonable
officer,” we then ask whether the severity of
force applied was balanced by the need for
such force considering the totality of the
circumstances, including (1) the severity of
the crime at issue, (2) whether the suspect
posed an immediate threat to the safety of
the officers or others, and (3) whether the
suspect was actively resisting arrest or
attempting to evade arrest by flight. Graham,
490 U.S. at 396, 109 S.Ct. 1865; Blanford v.
Sacramento Cnty., 406 F.3d 1110, 1115 (9th
Cir.2005).

28
17

1

Torres, 648 F.3d at 1123-24; see also Gonzalez v. City of

2

Anaheim, 747 F.3d 789, 793-94 (9th Cir. 2014) (en banc).

3

“The immediacy of the threat posed by the suspect is the

4

most important factor.”

5

v. Agarano, 661 F.3d 433, 441 (9th Cir.2011) (en banc)). In

6

addition, “the ‘alternative methods of capturing or subduing a

7

suspect’ available to the officers” are “also relevant to

8

reasonableness.”

9

City of Hemet, 394 F.3d at 703).

10

Gonzalez, 747 F.3d at 793 (citing Mattos

Gonzalez, 747 F.3d at 794 (quoting Smith v.

The reasonableness test outlined in Graham applies equally

11

to the use of deadly force. See Price v. Sery, 513 F.3d 962, 968

12

(9th Cir. 2008) (discussing Scott v. Harris, 550 U.S. 372 (2007)).

13

Moreover,

14
15
16
17
18
19
20
21
22
23
24

“the mere fact that a suspect possesses a
weapon does not justify deadly force.” Haugen
v.
Brosseau,
351
F.3d
372,
381
(9th
Cir.2003), rev'd on other grounds, 543 U.S.
194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)
(citing Harris v. Roderick, 126 F.3d 1189,
1202 (9th Cir.1997) (holding, in the Ruby
Ridge civil case, that the FBI's directive to
kill
any
armed
adult
male
was
constitutionally unreasonable even though a
United States Marshal had already been shot
and killed by one of the males)); Glenn, 673
F.3d at 872 (suspect's mere “possession of a
knife” is “not dispositive” on immediatethreat issue); Curnow, 952 F.2d at 324–25
(holding that deadly force was unreasonable
where the suspect possessed a gun but was not
pointing it at the officers and was not
facing the officers when they shot).

25
26

Hayes v. County of San Diego, 736 F.3d 1223, 1233 (9th Cir. 2013).

27
28
18

1

“‘Because [the excessive force inquiry] nearly always

2

requires a jury to sift through disputed factual contentions, and

3

to draw inferences therefrom, . . . summary judgment should be

4

granted sparingly in excessive force cases.’”

5

Washington County, 673 F.3d 864, 871 (9th Cir. 2011) (quoting

6

Smith v. City of Hemet, 394 F.3d at 701).

7

applies with particular force where the only witness other than

8

the officers was killed during the encounter.”

9

F.3d at 795 (citing Glenn v. Washington County, 673 F.3d at

Glenn v.

“This principle

Gonzalez, 747

10

871); see also Torres v. City of Madera, 648 F.3d 1119, 1125 (9th

11

Cir. 2011)(summary judgment should be granted sparingly in

12

excessive force cases).

13

Clark approached Clifford’s car because loud music was

14

coming from the car.

15

Placer County noise ordinance, a very minor infraction.

16

described Clifford as “real slow . . . with his movements,” not

17

“real alert,” “very disheveled” with “real glossy” eyes, non-

18

responsive to initial directives from Clark, almost incapable of

19

getting himself back into the car, and then “incoherent” and

20

“unintelligible” in responses he did make.

21

of Clifford gave rise to a suspicion that Clifford was under the

22

influence of drugs or alcohol and, in fact, toxicology reports

23

showed that Clifford’s blood alcohol level was 0.223 after his

24

death.

25

At most, this was an alleged violation of a
Clark

Clark’s observations

Clark’s description of events also raises conflicting

26

questions about whether Clifford knew Clark was a police officer.

27

Clark’s marked patrol car was parked behind Clifford’s car with

28

the spotlight shining directly on Clifford’s car.
19

Clark Decl.

1

(ECF No. 21-4) at ¶ 5.

2

respond to an order to produce identification, compare id. at ¶ 9

3

with Defs. Ex. A (ECF No. 21-6) at 14, which leads to an

4

inference Clifford knew Clark was a police officer.

5

Clark did not verbally identify himself as a police officer when

6

he initially approached the car, and did not do so until Clifford

7

asked who Clark was after Clark had pulled his gun and was

8

pointing it at Clifford.

9

reported that Clifford repeatedly asked who Clark was and to see

Clark states that Clifford did appear to

However,

Defs. Ex. A (ECF No. 21-6) at 9.

Clark

10

his badge and Clark acknowledged he had thought it was possible

11

Clifford had not seen his full uniform.

12

testified that he was shining his flashlight directly in

13

Clifford’s eyes to adversely affect his vision, thus raising at

14

least an inference that Clifford could not see well and was in

15

fact confused about who Clark was and what was occurring.

Id. at 15.

Clark also

16

The foregoing gives rise to a reasonable inference that

17

Clifford was too impaired and confused to make a controlled reach

18

for the gun on the passenger seat.

19

had a gun in the car, without more, did not justify the use of

20

deadly force.

21

1233.

The mere fact that Clifford

See Hayes v. County of San Diego, 736 F.3d at

22

The key question here is “whether a reasonable jury would

23

necessarily find that” Clark “perceived an immediate threat of

24

death or serious physical injury at the time he shot” Clifford

25

such that the use of deadly force was reasonable.

26

F.3d at 794.

27

“tense, uncertain, and rapidly evolving” situation during which

28

Clifford refused to comply with orders to keep his hands on the

Gonzalez, 747

Clark’s description of events, if believed, is of a

20

1

steering wheel and became more hostile and aggressive before

2

deliberately and in a controlled manner reaching for the gun.

3

Clark avers that Clifford made a controlled full arm’s length

4

reach for the gun after failing to comply with repeated orders to

5

keep his hands on the steering wheel and not reach for the gun.

6

If this is true, no reasonable jury would conclude that Clark

7

violated Clifford’s Fourth Amendment rights and, in any event,

8

this court would find Clark entitled to qualified immunity.

9

Clark’s description of Clifford as significantly impaired,

10

moving slowly, and confused about what was going on, together

11

with the toxicology report showing Clifford’s blood alcohol level

12

at .223, however, raise serious questions about whether Clifford

13

was capable of making a controlled reach for the gun.

14

questions, in turn, give rise to a question about Clark’s

15

credibility which must be resolved by a jury.

16

that Clifford was too impaired to make a controlled reach for the

17

gun it could disbelieve Clark’s asserted reason for shooting

18

Clifford.

19

Clifford made a controlled reach for the gun, it could disbelieve

20

some or all of Clark’s testimony concerning events leading up to

21

the shooting.

22

Cir. 2013) (it is the “general law of the Ninth Circuit” that “a

23

witness ‘deemed unbelievable as to one material fact may be

24

disbelieved in all other respects.’”)(internal citation omitted).

25

These

If a jury believes

And if the jury disbelieved Clark’s testimony that

See Enying Li v. Holder, 738 F.3d 1160, 1164 (9th

Viewed in the light most favorable to plaintiff and drawing

26

all reasonable inferences therefrom, a reasonable jury could

27

conclude that Clifford was too impaired to make a controlled

28

reach for the gun and that Clark’s asserted reason for shooting
21

1

Clifford is not credible.

2

also find that Clark’s used of deadly force was unreasonable and

3

excessive and violated the Fourth Amendment.

4

If it so concluded, the jury could

The second prong of the qualified immunity analysis requires

5

the court to decide whether it would have been clear to a

6

reasonable officer in Clark’s position that his use of deadly

7

force was unlawful in the situation he faced.

8

whether a defendant is entitled to qualified immunity is a

9

question of law for the court.

The question of

Torres, 548 F.3d at 1210.

10

However, the court only resolves that question of law if all

11

material facts are undisputed and, taken in the light most

12

favorable to the plaintiff, the facts show the defendant did not

13

violate clearly established federal constitutional rights.

Id.

14

At all times relevant to this action, it was clearly

15

established that the use of deadly force was reasonable only if

16

an officer “‘has probable cause to believe that the suspect poses

17

a significant threat of death or serious physical injury to the

18

officer or others.’”

19

F.3d 901, 906 (9th Cir. 2007)(quoting Scott v. Henrich, 39 F.3d at

20

194, in turn quoting Tennessee v. Garner, 471 U.S. at 3 (1985)).

21

The same credibility question that precludes summary judgment on

22

the merits of plaintiff’s second and eighth claims preclude a

23

finding that Clark is entitled to qualified immunity on these

24

claims.

25

Long v. City and County of Honolulu, 511

For all of the foregoing reasons, defendants’ motion for

26

summary judgment will be denied as to plaintiff’s second and

27

eighth causes of action.

28
22

1

B.

2

Plaintiff’s fifth cause of action is a wrongful death claim

Fifth Cause of Action

3

under § 1983 that by shooting and killing Clifford defendant

4

deprived “plaintiffs and the decedent of certain constitutionally

5

protected rights” including but not limited to freedom from

6

unlawful searches and seizures, deprivation of life and liberty

7

without due process, and freedom from excessive force.

8

seeks summary judgment on this claim on the ground that a

9

wrongful death action under § 1983 is not the appropriate vehicle

Defendant

10

for recovery for violation of the decedent’s constitutional

11

rights.

12

Plaintiff’s fifth claim will therefore be dismissed.

Plaintiff does not oppose this part of the motion.

13

C.

14

Plaintiff’s sixth cause of action is for loss of familial

Sixth Cause of Action

15

relationship.

16

process clause of the Fourteenth Amendment.

17

summary judgment on this claim on the ground that

18

requires the plaintiffs to prove that the officers' use of force

19

‘shock[ed] the conscience.’ Porter v. Osborn, 546 F.3d 1131, 1137

20

(9th Cir.2008).”

21

indifference may shock the conscious if the actor has time to

22

deliberate before committing the conscious-shocking action.

See

23

County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998).

To

24

determine whether this standard applies “the ‘critical

25

consideration [is] whether the circumstances are such that

26

‘actual deliberation is practical.’”

27

(internal citations omitted).

28

the officer acts with a “purpose to harm.”

The claim is governed by the substantive due
Defendants seek

Gonzalez, 747 F.3d at 797.

“Such a claim

Deliberate

Porter, 546 F.3d at 1137

Otherwise liability only lies when

23

Porter, id.

1

In Porter, the Ninth Circuit held that the “purpose to harm”

2

standard applied to a claim against a police officer who shot and

3

killed an individual during a “rapidly escalating confrontation”

4

that began when officers “were responding to a call about an

5

apparently abandoned vehicle.”

6

contrast, the deliberate indifference standard applies in

7

“situations that evolve in a time frame that permits the officer

8

to deliberate before acting and those that escalate so quickly

9

that the officer must make a snap judgment.”

10

Porter, 546 F.3d at 1133.

In

Id. at 1137.

Here, the “purpose to harm” standard and the “deliberate

11

indifference” standard focus on the officer’s state of mind.

12

While there are questions that require trial over the

13

reasonableness of Clark’s actions, the evidence, even viewed in

14

the light most favorable to plaintiff, does not support a finding

15

that Clark had a sufficiently culpable state of mind under either

16

standard to support plaintiff’s Fourteenth Amendment claim.

17

Defendant Clark is entitled to summary judgment on this claim.

18

D.

19

State Law Claims
1.

Wrongful Death -- Negligence

20

Defendants seek summary judgment on plaintiff’s negligence

21

claim on the ground that Clark acted reasonably in using deadly

22

force.

23

the same as the reasonableness standard that applies to

24

plaintiff’s Fourth Amendment excessive force claim. See Hernandez

25

v. City of Pomona, 46 Cal.4th 501, 513-14 (2009).

26

question that precludes summary judgment for Clark on plaintiffs’

The reasonableness standard that applies to this claim is

27
28
24

The credibility

1

Fourth Amendment excessive force claim precludes summary judgment

2

on this claim.9

3

2.

Intentional Infliction of Emotional Distress

4

Clark seeks summary judgment on plaintiff’s claim for

5

intentional infliction of emotional distress on the grounds that

6

(1) Clark’s conduct was not directed to plaintiff; (2) the

7

conduct was privileged; and (3) the conduct was not extreme or

8

outrageous.

9

argument that contends the conduct was privileged under

Plaintiff only challenges that portion of the

10

California Penal Code § 196, which protects reasonable use of

11

force.

12

California law “‘limits claims of intentional infliction of

13

emotional distress to egregious conduct toward plaintiff

14

proximately caused by defendant.’”

15

Court, 54 Cal.3d 868, 905 (1991) (internal citation omitted).

16

“The only exception to this rule is that recognized when the

17

defendant is aware, but acts with reckless disregard, of the

18

plaintiff and the probability that his or her conduct will cause

19

severe emotional distress to that plaintiff.”

20

evidence that Clark was aware of Clifford’s mother, and she was

21

not present at the shooting.

22

to summary judgment on this claim.

23

3.

24

Christensen v. Superior

Id. There is no

For this reason, Clark is entitled

Assault and Battery

Clark seeks summary judgment on plaintiff’s eleventh and

25

twelfth causes of action on the grounds that his use of force was

26

reasonable and that both claims “are disposed of in light of the

27

9

28

Defendants also seek summary adjudication of this claim on the grounds that
it is not asserted as a survival claim and because plaintiff does not assert a
statutory basis of liability. Neither of these contentions has merit.

25

1

Fourth Amendment excessive force analysis.”10,11

2

negligence claim, the state law battery claim “is a counterpart

3

to a federal claim of excessive use of force.

4

plaintiff must prove that the peace officer’s use of force was

5

unreasonable.”

6

(2009).

7

for Clark on plaintiffs’ Fourth Amendment excessive force claim

8

precludes summary judgment on plaintiff’s battery claim.

9

As with the

In both, a

Brown v. Ransweiler, 171 Cal.App.4th 516, 527

The credibility question that precludes summary judgment

Clark’s contention that he is entitled to immunity under

10

California Penal Code § 196 is governed by “whether the

11

circumstances ‘reasonably create[d] a fear of death or serious

12

bodily harm to the officer or to another.’”

13

Cal.App.4th at 816 (quoting Martinez v. County of Los Angeles, 47

14

Cal.App.4th 334, 349 (1996)).

15

question precludes summary judgment on this claim on the ground

16

of state law immunity.

Brown, 171

Again, the same credibility

17

In accordance with the above, IT IS HEREBY ORDERED that:

18

1.

19

Defendants’ motion for summary judgment is granted in

part and denied in part, as follows:

20

a.

Summary judgment is granted for defendants on

21

plaintiffs’ first, third, fourth, fifth, sixth, seventh, and

22

tenth causes of action;

23

b.

Summary judgment is granted in favor of defendants

24

Placer County and Placer County Sheriff’s Office;

25

10

26

11

27
28

Defendants do not brief the assault claim separately from the battery claim.

Defendants assert a variety of other grounds, including that the two causes
of action are personal to Clifford but not raised as survival claims. At
most, dismissal on this basis would require leave to amend. Where, as here,
plaintiff has given sufficient notice of the basis of the claim the court
construes eleventh and twelfth causes of action as properly pleaded.

26

1
2

c.

The Estate of Robert (Bobby) S. Clifford is

dismissed as a plaintiff; and

3

d.

Summary judgment is denied for defendant Clark on

4

plaintiff’s second, eighth, ninth, eleventh and twelfth causes of

5

action.

6

DATED:

August 27, 2014.

7
8
9
10
11
12
13
14
15
16
17
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20
21
22
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24
25
26
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27